Boston Lawyer BlogSJC Opinion Addresses Racially-Motivated Social Media Surveillance by Police
In 2018, Richard Dilworth was charged with a variety of firearms offenses after an officer from Boston Police Department’s gang unit sent him a friend request on Snapchat under a false identity and viewed Dilworth’s videos showing what appeared to be guns. In 2022, a judge dismissed the case after prosecutors refused to provide discovery about police practices regarding social media surveillance. The prosecution appealed. This week—almost seven years after the beginning of the investigation—the dismissal was affirmed by a unanimous Supreme Judicial Court in an opinion that addresses a number of important legal issues for criminal defendants.
Over the course of the protracted case, Dilworth, who is Black, made a series of discovery requests aimed at developing a defense of selective enforcement based on race. The defenses of selective enforcement or selective prosecution typically require a defendant to show three things: (1) that a broader class of people than those prosecuted or investigated has violated a law, (2) that the failure to enforce the law across the board was either consistent or deliberate, and (3) that that the decision not to enforce or prosecute was based on a protected class like race. Dilworth accordingly sought information about individuals whose social media accounts police were secretly monitoring; he also requested user icons or bitmojis and the user names for the fake Snapchat accounts used by police, on the ground that these would “demonstrate the demographics of the groups they are trying to infiltrate.”
The judge granted most of Dilworth’s discovery motions, relying in part on the SJC’s landmark decision in Commonwealth v. Long, issued in 2020 during the pendency of Dilworth’s case. In Long, the SJC held that under constitutional guarantees of equal protection, a defendant subject to a traffic stop by police has a right to discovery about police practices in order to make out a selective enforcement claim, as long as the defendant can raise a reasonable inference that the particular stop at issue was motivated by race.
